Prior restraint

The classic example of falsely yelling fire in a crowded theater can be extended to illustrate.

Prior restraint would be requiring a gag on everyone as they enter the theater because someone might falsely yell fire.

The solution we have is to punish those that do, not gag everyone who enters the building.

“Gun free zones” are the same sort of thing. You must leave your gun behind because it is feared that you might use it in a criminal manner.

The solution must be that we punish those that injure innocent people and we must not attempt to prevent all people from using their gun at all.

One might claim that the risks are so high that prior restraint is justified as in drunk driving laws. There are two counters to that. 1) Driving is a privilege, not a specific enumerated right; and 2) Only in extremely rare cases does driving drunk have any benefit to society.

And even if we were to accept crime prevention is a valid means to protect innocent life we have problems. Does that mean to prevent rape we should castrate all the men? How about sewing all vaginas shut so women can’t engage in prostitution? Or removing eyes so people can’t engage in voyeurism? And to prove I’m not stuck on sex crimes, we can prevent fights by shackling the hands and feet of everyone. We can prevent drunk driving and public drunkenness by banning alcohol. Slander can be prevented by removing people’s vocal cords. Libel can be prevented by banning publication of, well, everything. And while we are at it we can prevent theft by abolishing private property.

Crime “prevention” is a very hot button for me. There is no limit to the evil that can be justified and/or enabled once you accept the premise that it is acceptable to prevent crime by restricting liberty.

The very name of the Brady Campaign to Prevent Gun Violence demonstrates they are a very misguided and dangerous organization.

20 thoughts on “Prior restraint”

Not just the 2nd Amendment, but all of them. Imagine a world where:
– Warrantless, random, no-knock searches are encouraged, because the occupants might be committing a crime (4th Amendment).
– Requiring repeat “double jeopardy” trials, because a guilty defendant might be found innocent the first time (5th Amendment).
– Requiring a defendant to prove his/her innocence before refusing to bear witness against him- or herself (also 5th Amendment).
– Never informing any accused person of the charges, because knowing the charges makes it easier for a guilty person to mount a successful defense (6th Amendment).
– Prohibiting a defendant from obtaining witnesses or retaining counsel, because they might falsely testify in his/her favor, resulting in a “not guilty” verdict (6th Amendment again).
– Forbidding trial-by-jury in civil suits, because the jury might find that the plaintiff is full of crap (7th Amendment).
– Requiring excessive bail, because the accused might be guilty and therefore must remain in custody until well after the trial (8th Amendment).

Um, Archer…? Your example on no-knock warrants is EXACTLY the rationale for them, and the reason they should not be allowed. There is no inherent probably cause. Now, there may be other circumstances, but the proximate and most common reason adduced is that the suspect might destroy evidence.

Lyle… I would not even grant the exception in the case of drunk driving. The record actually appears that people who do damage while driving under the influence frequently do not face sufficient punishment. I submit that this is largely because, in anti-DUI initiatives, the state has assumed partial responsibility for the damage done. Don’t exercise prior restraint, but punish sufficiently those who DO do harm, but ONLY when they do.

I’m in favor of prior restraint of governments, because it is proven that 100% of them over-reach and become detrimental to life, liberty, property and the pursuit of happiness. We used to have a constitution to do that of course, but we failed to keep it.

I believe one of Archer’s examples, at least, is already in effect. “National Security” used as a reason for denying Defense attorneys they ability to review evidence against the accused. Well, and warrantless wire taps, Executive drone executions… sigh, we’re already there.

So the judges are being dragged, kicking and screaming to the conclusion that all of the constitutional provisions and analyitical tools apply to all clauses of the constitution, including the scary Second Amendment.
I suppose they would do a do-do in their pants if they had to experience the work environment of that Swiss Canton where the citizenry bring swords to the council meetings as a symbol to the council members as to who actually wields the power there.

“The solution must be that we punish those that injure innocent people and we must not attempt to prevent all people from using their gun at all.”
This isn’t a solution to the atrocities that ignited the current debate because it assumes a rational actor who can be dissuaded by the threat of punishment. Sandy Hook, Aurora, and the Oregon Mall had irrational actors, two of which evaded “punishment” by killing themselves. The other made an insane risk/reward calculation, as demonstrated by the mugshot following his surrender.
Your solution implies that we must accept these long-tail atrocities as the price of…? Enabling a hypothetical righteous insurrection or civil war? Many people don’t see _that_ as a rational trade-off. Law and culture are not rigidly logical systems like software. Arguing that banning guns introduces a prior-restraint inconsistency to the system will not impress people who have evidence that their children are at risk from random acts of violence.

This isn’t a solution to the atrocities that ignited the current debate because it assumes a rational actor who can be dissuaded by the threat of punishment.

This is a shortcoming of any law. Any system of punishment assumes the people will make a risk/reward calculation and be dissuaded from the bad act by the level of risk.

The solution is to proactively remove from society those who cannot make a sane risk/reward calculation – in other words, those whose mental instability presents a clear danger to others – and those who have demonstrated that they cannot be dissuaded by punishment – in other words, those who have a long repeat history of violent crime. Such people recognizably present a risk to others regardless of the tool they use.

Your solution implies that we must accept these long-tail atrocities as the price of…?

It isn’t a shortcoming of a law that imposes a form of prior restraint. The irrational actor is deprived of a means to act. No punishment is necessary because the crime is disabled.
Are you really more free than a Canadian, Australian, or Englishman? These countries have made progress on controlling the weapons of mass murder. How many mass shootings has England had since the reforms that followed Dunblane? How many have taken place in Oz after the Port Arthur reforms?

Yes, we are freer than the English, Canadians, or Australians. We still have laws that respect our right to defend ourselves. In England you can be imprisoned for fighting back against an attacker; here that’s unlikely unless you have a bad luck of being attacked by a Youth Of Color and have a Jewish-sounding name.

And England has not only had mass shootings since their “ban”, but their gun crime has skyrocketed. Then, during last summer’s riots, innocent people were left defenseless against the mobs. Some of those innocent people lost their lives or were raped.

In Australia, during the Cronulla riots there suddenly appeared on the streets, in the hands of some of the rioters, all sorts of supposedly banned firearms.

Our cousins elsewhere in the Anglosphere enjoy a freedom from fear that our permissive gun laws deny us. They wonder why we tolerate an envrionment where a movie theatre or school is a danger zone. Ask them if they’d the risk of being prosecuted for overzealous self-defense for the risk of their children being slaughtered by a crazy man with a black rifle.
Please cite specific instances of mass shootings in England since the Dunblane reforms. Specifcally, nihilistic terror attacks with guns, if possible. I don’t recall any in the news. And they would have been big news.
Despite the anecdotes you cite, the rate of firearm homicide in the US is still vastly greater than that of the UK, Canada, or Australia.http://www.guardian.co.uk/news/datablog/2012/jul/22/gun-homicides-ownership-world-list
The causes of violent crime in general are complex. The current proposals are not inspired by violent crime in general. The crimes we are talking about here are not general violent crimes perpetrated by ordinary criminals. We’re talking about removing ready access to mass murder weapons for Black Swan psychopaths. A little prior restraint would go a long ways towards keeping those demons leashed, as has been demonstrated elsewhere in the developed world.

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